Florida will watch same-sex marriage fight from the sidelines

July 26, 2013|Aaron Deslatte, Capitol View

TALLAHASSEE — Florida is home to some of the most gay-friendly locales in North America. So, it might seem odd that the state is sitting on the back burner of the legal fight to legalize same-sex marriages.

A coalition of civil-rights groups led by Equality Florida, the ACLU, the National Center for Lesbian Rights and others is planning to eventually challenge the state's 2008 constitutional amendment barring same-sex marriage.

But last week, they sent out a strategy memo urging individual supporters against filing lawsuits, notwithstanding the U.S. Supreme Court's decisions last month striking down part of the federal Defense of Marriage Act and California's Prop 8 same-sex marriage ban.

The rationale: While groups have already filed challenges in "strategic" states to build precedent for overturning state gay-marriage bans, Florida rests in the U.S. Court of Appeals for the Eleventh Circuit, considered one of the most conservative of the federal judiciary.

That reality led to the Florida groups' decision to release a five-page memo spelling out that they wouldn't file a legal challenge until "favorable precedent has been established or changes in the legal landscape otherwise improve our prospects."

That precedent could come from Virginia, North Carolina or Pennsylvania, where challenges were launched within days of the Supreme Court ruling in order to try and force the nation's high court to consider gay-marriage on equal protection grounds.

But Florida makes no sense as a battleground now.

"I would hope that anybody who's contemplating that would look at the jurisprudence and that unfortunately we live in the Eleventh Circuit with Georgia and Alabama. That is not a friendly forum to vindicate the rights of gay people," said Howard Simon, executive director of the American Civil Liberties Union of Florida, which won a lawsuit in state court in 2010 to invalidate a 1977 ban on gay adoption.

In contrast, the Eleventh Circuit in the past has invoked "public morality" as a basis for precluding gay adoption.

Same-sex marriage "is coming in this country," Simon said. "It's inevitable. It's going to happen. But the fact is, Florida is not going to be a leader."

"What they're trying to do is … make a creative argument that the Supreme Court has created some newfound argument of equality," said John Stemberger, whose Orlando-based Florida Family Policy Council helped pass the 2008 ban.

"The court clearly did not make a fundamental right to marry."

That said, Equality Florida and the ACLU have begun putting together a legal team that includes Orlando civil-rights lawyer Mary Meeks and Miami LGBT family and estate planning lawyer Elizabeth Schwartz. The groups have also recruited more than 500 same-sex couples willing to serve as plaintiffs in a legal challenge.

With the high court's ruling, some 30 percent of the U.S. population now lives in the 13 states recognizing same-sex marriage. A few of the states that don't are the new fronts in battles to secure that right.

But the Florida Legislature isn't likely to become any more interested in taking up gay-rights issues, despite having the first two openly gay House members elected last year.

And Florida's LGBT groups are, for now, writing off another ballot initiative, citing the difficulty of getting the 60-percent majority Florida requires to amend its constitution.

"We think 2014 is just way too early," said Michael Farmer, state field director for Equality Florida. "I don't think there's anyone out there that thinks public opinion will be where it needs to be by 2014."